TAKEAWAYSBeginning April 12, 2024, USFWS will offer a general permit application for incidental take of bald and golden eagles for wind energy and power line projects.The general permit option will provide an alternative to project-specific permits, formerly known as Incidental Take Permits. Projects in areas with a high incidence of eagles will still be required to obtain a specific permit, but the vast majority will be eligible for the general permit.General permits will have shorter terms than specific permits, can be renewed at the end of each term, and will be significantly less expensive to apply for and implement than the Incidental Take Permit.On February 12, 2024, the U.S. Fish and Wildlife Service (USFWS) published a final rule revising the eagle permit program under the Bald and Golden Eagle Protection Act (BGEPA). 89 Fed. Reg. 9920. The new rule streamlines the issuance of project-specific incidental take permits by establishing, for the first time, general permits for certain eligible wind energy generation and power line infrastructure projects. The rule, codified at 50 C.F.R. Parts 13 and 22, also improves the project-specific permitting process for those projects that would not otherwise qualify for the general permit by removing the requirement that permits include a specific take limit and third-party monitoring provisions for wind projects. The new permitting regime can potentially result in significant time and cost savings for eligible projects.NEW GENERAL PERMITS (50 C.F.R. § 22.210)An “incidental take” is a take (wounding, killing, disturbing) that is foreseeable and results from—but is not the direct purpose of—an activity. Pursuant to the final rulemaking, the new general permits for incidental take apply to four categories of activities: (1) wind energy, (2) power lines, (3) other specified activit

Last month, in 89 FR 9920, the U.S. Fish and Wildlife Service (“USFWS”) published a final rule revising the eagle take permit (“ETP”) process. USFWS believes the new rule will encourage more participation in the ETP program and account for increased eagle populations nationwide.As previously detailed, bald and golden eagles are protected from “take” without a permit by the Bald and Golden Eagle Protection Act (“Eagle Act”) and the Migratory Bird Treaty Act (“MBTA”) (together, the “Acts”). The Acts prohibit an authorized “take,” which means to “pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” The prohibition extends to intentional and incidental takes, including unintended collisions with wind project infrastructure. If a take occurs without an incidental take permit, the project developer or operator can face significant USFWS enforcement actions and multi-million dollar penalties.The final rule creates a new program of gen